HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Douglas Hatton
Applicant
-and-
Securitas Canada Limited and All Star Security
Respondents
INTERIM DECISION
Adjudicator: Esi Codjoe
Indexed as: Hatton v. Securitas Canada Limited
WRITTEN SUBMISSIONS
Douglas Hatton, Applicant
Jean-Alexandre De Bousquet, Counsel
Securitas Canada Limited, Respondent
Daniel R. McDonald, Counsel
1This Interim Decision addresses the request for production of minutes of settlement filed by the respondent Securitas Canada Limited (“Securitas”), and two Requests For Orders During Proceedings (“RFOP”) filed by the applicant; one is to amend the remedial request in his Application, the other is for the production of various documents.
2On April 25, 2016, the applicant filed an Application alleging discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended. Specifically, the applicant alleged that after he suffered an epileptic seizure at work, management personnel subjected him to an inappropriate level of scrutiny, treated him in a negative and disparaging manner, and that one of the respondents did not offer him employment.
3In or around June, 2017, the applicant entered into minutes of settlement with the former respondent PepsiCo Foods Canada (“Pepsi”).
4By Request for Order During Proceedings filed on June 29, 2017 Securitas requested production of the minutes of settlement concluded between the applicant and Pepsi.
5On July 27, 2107, the applicant sought to amend the Application to increase the quantum of general damages sought from $25,000.00 against all respondents to $25,000.00 against each respondent, and to increase the damages for lost wages sought against the respondent All Star Security (“All Star”) from $20,000.00 to $40,000.00.
6By Request for Order During Proceedings filed on July 31, 2017 the applicant requested production of the following documents:
- Securitas:
i. Internal correspondence between all Securitas employees or third parties related to the applicant’s disability;
ii. Internal correspondence between all Securitas employees or third parties related to the applicant’s need for accommodations (including the obtention of a panic button);
iii. Internal correspondence between all Securitas employees or third parties related to the applicant’s complaint about discrimination and concerns with Tawembe; and
iv. Internal correspondence between all Securitas employees or third parties related to the implementation of a new emergency protocol in or around January 2015.
- All Star:
i. Internal correspondence between all All Star employees and Pepsi employees related to the applicant;
ii. Internal correspondence between all All Star employees or third parties related to the offering of employment with All Star; and
iii. Internal correspondence between all All Star employees or third parties related to the applicant’s offer of employment with All Star.
- Pepsi:
i. Internal correspondence between all Pepsi employees or third parties related to the applicant and any matters related to the applicant’s Human Rights Application.
decision
Production of Minutes of Settlement
7The basic principle in determining a production request by this Tribunal is whether the requested documents are “arguably relevant”. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. See McKay v. Toronto Police Services Board, 2009 HRTO 1220 at paras. 12-13.
8Even documents that meet the “arguable relevance” threshold may not be disclosed or may be subjected limited disclosure if there are extenuating circumstances, such as privilege claims or privacy concerns that need reconciliation or protection.
9Securitas submits that the minutes of settlement between the applicant and Pepsi are arguably relevant to the proceedings. To that end, the allegations against Pepsi relate to those against Securitas, and include live issues regarding whether Securitas failed to investigate discrimination against the applicant by a Pepsi employee. In addition, there might be an overlap between the issues in dispute relating to Securitas and Pepsi. As such, Securitas submits that it fair and just that it receive the minutes of settlement. Further, the applicant has sought global remedies against all three respondents; namely $15,000.00 in general damages, and $20,000.00 for lost wages. Finally, it submits that the minutes of settlement are not covered by settlement privilege because there is a clear nexus between the settlement and the proceedings; namely it is necessary to ensure the applicant does not seek double recovery of damages.
10The applicant argues the minutes of settlement are similar to a Perringer Agreement as outlined in Sable Offshore Energy Inc. v. Ameron International Corp. (“Sable”), [2013] 2 SCR 623, 2013 SCC 37, and are not relevant or necessary to the disposition of the litigation and are protected by settlement privilege. He submits that concerns about double recovery can be addressed by the adjudicator being provided the quantum of the settlement at the end of the hearing. The applicant asserts that not all of the settlement may be relevant, and as such settlement privilege should attach to the remainder of the settlement.
11At this stage in the proceedings, it is not evident that the liability as between the respondents for the heads of damages does not overlap. It is also not clear that the settlement between Pepsi and the applicant does not change the litigation landscape, in particular as it relates to the quantum of damages. While it is true that generally settlement privilege does apply to settlement documents, as noted in Sable there are limited exceptions. One such exception is when there are competing public interests that outweigh the public interest in encouraging settlement, including preventing a plaintiff from being overcompensated: see Sable, above, at para 19. The disclosure of any settlement figures that may have been paid as outlined in the settlement document, and the wording pertaining to what they relate to is appropriate in the circumstances. As noted in Lesperance v. Caressant Care Nursing and Retirement Homes Limited, 2014 HRTO 626, the settlement figures may speak to the question of the scope of damages based on the allegations in the Application, and the amount that he is entitled to in the event he makes a successful claim. The disclosure of the document does not necessarily mean that the document in part, or in whole will be admitted at the hearing. Further, to the extent there are confidentiality issues related to the settlement terms, those issues can be addressed at the merits hearing.
Amendment of Application
12In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.
13The applicant submits that his request to amend the quantum of damages should be allowed because it was filed in a timely manner and there would be no prejudice to the respondents if the request were granted. He asserts that the request does not raise any new allegation; therefore to permit the amendment would not interfere with the fair, just and expeditious resolution of the matter.
14Securitas opposes the request to amend the remedies listed in the Application. It submits that the applicant filed the Application in April, 2016 and has been represented by counsel at all times. As such, he has benefited from the assistance of counsel, and had the benefit of being able to assess his damages and draft his Application with legal assistance. Securitas submits that the applicant has not provided a compelling reason why the request to amend should be allowed. It notes that the request to amend has come shortly after the applicant’s settlement with Pepsi. Securitas asserts that there is no demonstrable connection between the amendment that is sought and his complaint against the respondents. Lastly, there has been no material change in circumstances to give rise to the claim, other than the applicant’s settlement with Pepsi.
15Having considered the factors set out above, I deny the applicant’s request to amend the Application. The applicant’s request to amend was filed 14 months after his initial Application. He seeks to substantially increase the quantum of the damages request from $25,000.00 and $20,000.00 to $75,000.00 and $40,000.00. The timing of the request is dubious. At all material times the applicant has been represented by counsel. This typically means that the applicant has turned his mind to all aspects of his case, and contemplated a variety of issues that could arise, including potential changes in the nature and scope of the case. Consequently, this typically leads to an applicant pleading his full position at the outset, or shortly thereafter. However, the applicant has not plead any material change in circumstances or underlying facts as the basis for the requested amendment. In fact, the only material change in the scope of the Application is that the applicant seeks to change his position regarding the monetary remedial request, within approximately a month of his settlement with one of the respondents. It is not clear how the fact of the settlement could support any argument of greater liability against the remaining respondents. Indeed, the applicant has specifically alleged the settlement is not relevant or necessary to the disposition of the litigation. This request is problematic; respondents are entitled to know the case they have to meet, including the remedies that are being sought in a timely fashion.
Production of Arguably Relevant Documents
16As noted at paragraph 7, the basic principle in determining a production request by this Tribunal is whether the requested documents are “arguably relevant”.
Securitas
17The applicant submits that the documents he seeks from Securitas are arguably relevant. He submits that the requested document will speak to whether his need for accommodation was properly addressed. In addition, he submits that the documents may demonstrate whether or not his concerns regarding a respondent employee were taken seriously.
18Securitas submits that the applicant’s requests should be denied. It argues that the requests at i and ii are overbroad and lack temporal limits, and also do not clearly indicate why they are relevant to the issues at hand. Securitas submits that the applicant’s requests i, ii and iv are not connected to the allegations against it outlined in the Application or Reply. To that end, it notes that the applicant’s pleadings do not contain an allegation that Securitas failed to accommodate his disability. It notes that the applicant has settled his claim against Pepsi, thus if he wishes to obtain documents pertaining to his allegations against Pepsi, he should seek those documents from that respondent. Lastly, Securitas submits that it has already provided the applicant with relevant documentation related to his allegations about discrimination as they pertain to the Pepsi employee.
19The applicant’s production request i is denied. The request is overbroad, is not time limited and lacks particulars. As outlined in the Application, the applicant was employed by the respondent for over 9 years. Theoretically Securitas may have information in its possession related to the applicant’s disability, however, the information it may possess may not be relevant to the issues as articulated in the Application. The allegations pertaining to Securitas related to it failing to address discrimination by a Pepsi employee in August 2014; this is a time limited issue. Consequently, the production request does not speak to the specific issue in dispute as it relates to this respondent.
20The applicant’s production request ii is denied. The applicant seeks information related to his need for accommodation, and Pepsi obtaining a panic button for him. However, the applicant has not asserted that Securitas failed to accommodate him, or that it had a role in the accommodation process. Rather, the issue of accommodation, and the possibility that the applicant may require a panic button relate to Pepsi. The applicant has settled his claim with Pepsi regarding that issue, and the other issues that relate to it. As such, the applicant’s production request is not arguably relevant to the issues as they relate to Securitas. In addition, the applicant’s request number iii is also denied. The respondent has already provided the information that the applicant seeks.
21Next, the applicant’s request for correspondence outlined in iv is denied. The applicant has not alleged that Securitas played any role in the implementation of a new emergency protocol. Nor has he alleged that he informed this respondent, about his alleged exclusion from the protocol. Rather, he has made claims as they relate to a Pepsi employee’s role in this issue. As such, the applicant’s request is not relevant to the issues in dispute as between him and this respondent.
All Star
22The applicant submits that the documents he seeks from All Star are arguably relevant. He asserts that this respondent discriminated against him by denying him employment. The applicant wishes to know whether All Star discussed him and/or his disability. In addition, he wishes to learn whether All Star offered employment to other Securitas employees, and whether his potential employment with All Star was discussed by All Star employees, Pepsi and/or third parties. He hopes to establish that All Star did not seriously consider offering him employment on account of his disability.
23The applicant’s disclosure request related to All Star outlined in paragraph i is granted, and ii is granted in part. The applicant asserts that All Star did not offer him employment, but did offer employment to his colleagues at Securitas. Further, he asserts that All Star’s reasons for not awarding him a position were discriminatory. Consequently, the All Star’s correspondence related to the applicant is responsive to the issues that he has raised in his Application, and as such it is arguably relevant. However, the applicant’s request at ii is overbroad as stated in his pleadings, but is not as it is qualified in his written submissions. The applicant submits that he wishes to ascertain whether the respondent offered employment to Securitas employees. That issue is specific and time limited as compared to the request as it is framed in the numbered paragraph. Whether All Star offered employment to Securitas employees on or about March 2015 is responsive to the issues the applicant has outlined in his Application concerning this respondent. As such that request for production is allowed in part.
24The applicant’s request for production of correspondence between All Star employees and third parties related to the applicant’s offer of employment with All Star is arguably relevant. The applicant claims that this respondent failed to hire him based on discriminatory reasons, as such the respondents hiring process as it relates to him is relevant. The production request is granted.
Pepsi
25Lastly, the applicant submits that documents pertaining to Pepsi meet the definition of arguable relevance in support of his allegations. He seeks information regarding any internal or external discussions pertaining to the applicant’s human rights Application as it will help him to shed light on his allegations of harassment against the remaining respondents. To that end, he asserts that he may be able to establish discrimination on the basis of disability by the remaining respondents.
26The applicant’s production request as it relates to Pepsi is denied. The request is overly broad and lacks particulars. Further, it is unclear why these documents are arguably relevant to his claim against Pepsi. Notably, the applicant has settled his claim against this respondent, so it is unclear why the production he seeks is arguably relevant to the issues that were in dispute between these two parties.
order
27For the above reasons, the Tribunal orders as follows:
a. The Securitas’s request for production of the Pepsi minutes of settlement is granted in part:
i. Within 7 days of the date of this decision, Pepsi must deliver to the respondents and applicant, and file with the Tribunal, the details of the quantum of its settlement and the particulars regarding the nature of the funds.
b. The applicant’s request to amend the remedies in his Application is denied;
c. The applicant’s request to for production from Securitas in paragraphs 6 i, ii, iii and iv are denied;
d. The applicant’s request to for production from All Star in paragraphs 6 i is granted:
i. Within 7 days of the date of this decision, All Star must deliver to the applicant and respondents, and file with the Tribunal, correspondence between All Star employees and Pepsi related to the applicant.
e. The applicant’s request to for production from All Star in paragraphs 6 ii, is granted in part:
i. Within 7 days of the date of this decision, All Star must deliver to the applicant and respondents, and file with the Tribunal, correspondence between All Star employees and Securitas employees regarding offers of employment on or about March, 2015.
f. The applicant’s request to for production from All Star in paragraphs 6 iii is granted:
i. Within 7 days of the date of this decision, All Star must deliver to the applicant and respondents, and file with the Tribunal, correspondence between All Star employees and third parties related to the applicant’s offer of employment with All Star; and,
g. The applicant’s request for production from Pepsi denied.
Dated at Toronto, this 6^th^ day of September, 2017.
“Signed by”
Esi Codjoe
Vice-chair
CORRECTION
The Interim Decision issued on September 6, 2017 incorrectly listed PepsiCo Foods Canada as a respondent. They were no longer a respondent at the time of the decision and have been removed from the style of clause. The word “former” has been added to paragraph 3 and paragraph 11 has also been changed to include the addition of the last sentence and some rewording to the 5^th^ sentence.
Dated at Toronto, this 11^th^ day of September, 2017.
“Signed by”
Esi Codjoe
Vice-Chair